THE Zimbabwe Electoral Commission (Zec) was on Tuesday interdicted from conducting a recount of ballots for Tsholotsho North constituency, where Zanu PF politburo member Jonathan Moyo lost to Roselene Nkomo of the MDC-T.
Nkomo’s lawyers, Phulu Ncube Legal Practitioners, also filed for an application for review of the decision to hold the recount that would be heard in the High Court today.
The recount was initially meant to be held in Tsholotsho yesterday.
In the interim relief, Bulawayo High Court judge Justice Lawrence Kamocha barred Zec from conducting a vote recount in the constituency without an order of such effect from the Electoral Court and finalisation of the application of review.
“Pending the finalisation of the application for review under cover of case number EC25/13, 2nd respondent (Zec) and or its officials, functionaries, employees, agents or assignees be and are hereby interdicted from conducting a vote recount of the Tsholotsho North constituency vote,” he ordered.
In the application for review in terms of Section 161 (1) (b) of the Electoral Act, Chapter 2:13, Nkomo’s lawyers argue that the manner in which Zec reached a decision to hold a recount in the constituency was not transparent.
The lawyers argue that the decision was, “in the circumstances, unreasonable, such that a reasonable administrative body, faced with the same circumstances, would not have reached such decision as 2nd respondent (Zec) reached”.
The lawyers said Zec’s decision was ultra vires (beyond the legal power of) the provisions of Section 67A of the Electoral Act, Chapter 2:13”.
The legal representatives argued that Zec’s decision to reopen and recount the Tsholotsho North constituency vote unlawful, as it had not been ordered by the Electoral Court in terms of Section 70 (4) of the Electoral Act, Chapter 2:13.
They further argued that Zec’s decision exhibited “bias or a reasonable perception of bias”.
In her founding affidavit, Nkomo says she came across a notice in the State-owned Sunday News newspaper, where Zec said it would engage in a recount of the constituency, following a request.
She said the vote recount was purportedly in terms of 67A of the Electoral Act, Chapter 2:13, which provides, among other things, that within 48 hours after a constituency elections officer has declared a candidate duly elected, any political party or candidate who contested the election may request a recount of the votes cast in one or more polling stations in the constituency.
She said she had been advised that a request for a vote recount in one or more polling stations is provided for specifically by Section 67 (A) (1) of the Electoral Act, Chapter 2:13.
“I am further advised that such a request for a recount shall be in writing and signed by the appropriate representative of a political party or candidate making such a request and that such political party or candidate who requests a recount should specifically state the number of votes he or she believes to have been miscounted and possibly how miscounting may have occurred,” Nkomo said.
She said the political party or candidate requesting a recount must state how the alleged miscount affected the election results.
“Further, more importantly, and in terms of Section 67 A (3) (A), the 2nd respondent (Zec), upon receipt of a request to recount votes, must immediately proceed to notify all these, be they, political parties of individual candidates, who contested the elections of the nature of the request for a vote recount, and the date and time on which 2nd respondent received such request,” Nkomo said.
She said it was only when Zec considers that there were reasonable grounds for believing that the alleged miscount of votes, “in fact occurred, and that such miscount affected the result of the election, that 2nd respondent may order a vote recount”.